Supreme Court Ruling on Ex Post Facto Environmental Clearances
The Supreme Court on May 16, 2025, declared the grant of ex post facto or retrospective Environmental Clearances (EC) by the Centre to building projects and constructions as a "gross illegality." This practice was deemed anathema, warranting stringent court intervention.
Judgment Details
- The ruling was delivered by a Bench comprising Justices A.S. Oka and Ujjal Bhuyan.
- The court restrained the Union government from granting ex post facto clearances to regularise illegal constructions.
- The 2017 notification and the 2021 Office Memorandum (OM) recognizing ex post facto ECs were struck down as illegal and arbitrary.
- However, ECs granted under these notifications before the judgment would remain unaffected.
Key Observations
- The court accused the Centre of "crafty drafting" to facilitate illegal constructions through retrospective ECs.
- Justice Oka emphasized that an EC must be obtained before starting a new project or expanding an existing one.
- The concept of ex post facto EC contradicts fundamental principles of environmental jurisprudence and the EIA Notification of January 27, 1994.
Impact and Reasoning
- The judgment highlighted that granting ex post facto clearance allowed illegal constructions to be regularised retrospectively.
- It noted that prior EC necessitates careful consideration of environmental impacts, which retrospective clearances overlook.
- Ex post facto ECs essentially legalize illegal activities started without required clearance.
Criticism of Government Actions
- The government’s 2021 OM was critiqued for circumventing the term 'ex post facto' while enabling a retrospective regime.
- The court questioned the notion of development at the expense of the environment, asserting the government's duty to protect and improve the natural environment.
- Justice Oka stressed that environmental conservation is integral to the concept of development.